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The Colorado Court of Appeals, in a case of first impression, decided the standard in People vs. Heisler (2017 COA 58).

Steven Thomas Heisler, (“Heisler”) was convicted of one count of harassment. He and the victim began dating in 2010 and had a relationship for about three years. In 2014, the victim began a new relationship and told Heisler that she no longer wanted contact. Heisler ignored her request and sent numerous texts and letters. She did not respond. In December of 2014, Heisler traveled from Florida, where he lived, to Colorado, where she lived and showed up at her home. She called police. Heisler was arrested and charged with felony stalking and harassment. The case went to trial and a jury found Heisler guilty of harassment and acquitted him of stalking. Heisler appealed on the grounds the trial court erred in admitting the text messages he sent to the victim. Heisler claimed they were not properly authenticated under CRE 901(a).

How to authenticate text messages under CRE 901(a) is a matter of first impression in Colorado. Before evidence may be admitted, CRE 901(a) requires it be sufficiently authenticated by the party presenting it. In recent cases in other divisions of the Colorado Court of Appeals, the courts have determined that printouts from social networking sites require two levels of authentication: First, the proponent must show that printouts from a social networking site are actual depictions of the site. Second, a witness with personal knowledge who testifies to any combination of at least two of the following elements would sufficiently authenticate the identity of the sender: (1) the account was registered to the sender; (2) evidence showed that the account was used by the sender; (3) the substance of the communications was recognizable as being from the sender; (4) the sender “responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication”; and (5) any other confirming evidence under the circumstances.

In this case, the victim authenticated the printouts of the texts and then verified the sender of the texts through evidence the phone number was Heisler’s, she testified she recognized the texts printed as the ones she received, and that they were a fair and accurate representation of the texts she received. Because of her testimony, the trial court did not err in admitting the texts as evidence. The Court of Appeals affirmed.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.

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